United States District Court, D. Massachusetts
AMENDED MEMORANDUM AND ORDER [*]
WILLIAM G. YOUNG, DISTRICT JUDGE
observations of a person's forays in and out of her home
do not usually fall within the Fourth Amendment's
protections. Here, the defendants ask the Court to consider
whether a precise video log of the whole of their travels in
and out of their home over the course of eight months,
created by a camera affixed to a utility pole that could also
read the license plates of their guests, raises Fourth
Amendment concerns. After a thorough analysis of the
parties' arguments and recent Supreme Court authority,
the Court rules that it does. Accordingly, the Court ALLOWS
the defendants' motions to suppress, ECF Nos. 326, 358.
federal grand jury indicted defendant Nia Moore-Bush
(“Moore-Bush”) on January 11, 2018. ECF No. 3.
Almost a year later, on December 20, 2018, the grand jury
returned a superseding indictment naming defendant Daphne
Moore (“Moore”), Moore-Bush's mother, as
well. ECF No. 206. Moore and Moore-Bush moved on April 22 and
May 2, 2019, respectively, to suppress evidence that the
Government collected using a video camera installed on a
utility pole across the street from Moore's house (the
“Pole Camera”). See Def. Daphne
Moore's Mot. Suppress (“Moore Mot.”), ECF No.
326; Def. Nia Moore-Bush's Mot. & Mem. Suppress
(“Moore-Bush Mot.”), ECF No. 358. Moore-Bush and
Moore argue that the Government's use of the Pole Camera
constituted a search under the Fourth Amendment to the United
States Constitution. See generally Moore Mot.;
Moore-Bush Mot. The Government opposed the motions to
suppress on May 6, 2019. Government's Opp'n
Defs.' Mots. Suppress Pole Camera Evidence
(“Gov't Opp'n”), ECF No. 367.
March 13, the Court heard oral argument on the motion and
took it under advisement. Electronic Clerk's Notes, ECF
No. 396. For the following reasons, the Court ALLOWS the
motions to suppress.
Court draws the facts from the parties' undisputed
statements at the motion hearing and in their briefing.
Government installed the Pole Camera on a utility pole across
the street from Moore's house, located at 120 Hadley
Street, Springfield, Massachusetts. Gov't Opp'n 1.
The Pole Camera captured video of, but not audio from, events
occurring near the exterior of Moore's house for
approximately eight months. Gov't Opp'n 2; Tr. 15:4,
ECF No. 414. During this time, Moore-Bush resided in
Moore's house. Gov't Opp'n 1.
Pole Camera surveilled the driveway and part of the front of
Moore's house. Tr. 34:13-15; Gov't Opp'n 2, 4. A
tree partially obscured its view. Gov't Opp'n 2.
Although the Pole Camera could zoom in so as to permit law
enforcement officers to read license plates, it could not
peer inside windows. Tr. 26:5-22. Law enforcement officers
also could pan and tilt the camera. Gov't Opp'n 3.
Additionally, law enforcement officers could operate the Pole
Camera's zoom feature remotely. Tr. 13:19-14:14. The Pole
Camera produced a digitized recording that the Government
could search. Tr. 16:2-16.
the Government has not stated the exact nature of the
evidence that it seeks to admit from the Pole Camera, the
parties assume that the Government will introduce video, much
of it the Pole Camera recorded well into its eight-month
existence. Tr. 20:5-23, 35:1-14.
and Moore argue that the Pole Camera's eight-month video
log of Moore's house constitutes an unconstitutional
search. Moore-Bush Mot. 1; Moore Mot. 1.
Fourth Amendment to the United States Constitution
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Government does not justify its use of the Pole Camera with a
warrant or probable cause. See generally Gov't
Opp'n. Instead, it insists that its use of the Pole
Camera does not amount to a search. Id. at 2.
Consequently, as the parties have presented this case, the
use of the Pole Camera violates the Fourth Amendment if its
operation constitutes a search. Although there are some
exceptions -- none of which the Government invokes
-- courts exclude evidence that federal officers obtain using
a search that violates the Fourth Amendment. See United
States v. Dedrick, 840 F.Supp.2d 482, 492 (D. Mass.
2012) (citing Mapp v. Ohio, 367 U.S. 643 (1961)).
Supreme Court has formulated two tests for analyzing whether
the Government has conducted a Fourth Amendment
“search.” See United States v. Bain, 874
F.3d 1, 11-12 (1st Cir. 2017). For one, “[u]nder the
common law trespassory test, ” a Fourth Amendment
search occurs “[w]hen the Government obtains
information by physically intruding on persons, houses,
papers, or effects.” Id. at 12 (quoting
Florida v. Jardines, 569 U.S. 1, 5 (2013)). In this
case, neither Moore-Bush nor Moore assert that a search
occurred under the common law trespassory test. See
generally Moore-Bush Mot.; Moore Mot.
they rely on the “reasonable expectations test.”
See id.; Bain, 874 F.3d at 12. Under this
test, “a search occurs whenever the government intrudes
upon any place in which a person has a ‘reasonable
expectation of privacy.'” Bain, 874 F.3d
at 12 (quoting Katz v. United States, 389 U.S. 347,
360 (1967) (Harlan, J., concurring)). To show that a search
occurred under this test, then, each defendant has the burden
of showing that (1) she “exhibited an actual,
subjective expectation of privacy” and (2) her
“subjective expectation is one that society is prepared
to recognize as objectively reasonable.” See United
States v. Morel, 922 F.3d 1, 8 (1st Cir. 2019) (quoting
United States v. Rheault, 561 F.3d 55, 59 (1st Cir.
2009); United States v. Stokes, 829 F.3d 47, 51 (1st
the reasonable expectations test represents a relatively
recent doctrinal innovation, the Supreme Court has taught
that the public's understanding of unreasonable searches
at the Fourth Amendment's framing informs the test's
application. See Carpenter v. United States, 138
S.Ct. 2206, 2214 (2018) (quoting Carroll v. United
States, 267 U.S. 132, 149 (1925)). The Supreme Court
thus has identified two “basic guideposts” from
history: “First, that the [Fourth] Amendment seeks to
secure ‘the privacies of life' against
‘arbitrary power.' Second, and relatedly, that a
central aim of the Framers was ‘to place obstacles in
the way of a too permeating police surveillance.'”
Id. (quoting Boyd v. United States, 116
U.S. 616, 630 (1886); United States v. Di Re, 332
U.S. 581, 595 (1948)). These timeless guideposts point the
Court on its way towards resolving this motion.